R CHF & Others v The Headteacher and Governing Body of Newick Church of England Primary School
| Jurisdiction | England & Wales |
| Judge | Lady Justice Andrews,Lord Justice Dingemans,Lord Justice Peter Jackson |
| Judgment Date | 28 April 2021 |
| Neutral Citation | [2021] EWCA Civ 613 |
| Docket Number | Case No: C1/2020/1855 |
| Date | 28 April 2021 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 613
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
Mr Tim Smith (sitting as a Deputy High Court Judge)
CO/2181/2020
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
Lord Justice Dingemans
and
Lady Justice Andrews
Case No: C1/2020/1855
and
The Appellants appeared in person with their McKenzie Friend
The Respondents did not appear
Written submissions were made on behalf of the Interested Party
Hearing date: 27 April 2021
Approved Judgment
Introduction
This appeal arises from a decision of Mr Tim Smith, sitting as a Deputy Judge in the Administrative Court on 9 October 2020 (‘the Judge’). It concerns an order protecting the identification of the Appellants' children in any reporting of judicial review proceedings.
The Appellants are a couple with a number of children who share their distinctive surname. The parents are referred to in this judgment where convenient as CHF and CHM, denoting ‘the children's father’ and ‘the children's mother’. In the summer of 2019 serious and sensitive allegations were made about the behaviour of one of the children towards other children also attending the First Respondent primary school, which is the responsibility of the Second Respondent Council. A dispute arose about the way in which the allegations were handled. In June 2020, the Appellants applied for judicial review. In their claim form they sought anonymity for the children and for themselves:
“SECTION 8: OTHER APPLICATION
1. The Claimants propose to make an application for an anonymity order that the judicial review proceedings to be anonymised pursuant to rule 39.2(4), 5.4C and 5.4D of the Civil Procedure Rules, section 11 of the Contempt of Court Act 1981 and s.39 of the Children and Young Persons Act 1933, on the grounds that:
2. The Claimant parents are bringing this litigation on their own behalves, and also on behalf of each of their children; and, [it is] in the interests of the Claimant children's Article 8 right to respect for private and family life and Article 10 right to freedom of expression, that the parents and their children's names be anonymised as follows: [ alphabetical system suggested]].”
On 27 July 2020, Linden J granted permission to the Appellants to seek judicial review on one ground (the detail is not material) but refused it on others. When giving his decision he made an order in these terms:
“ Anonymity
9. I agree that an anonymity order is necessary in relation to the children who are referred to in this case.
10. Pursuant to CPR rule 39.2(4) I therefore direct there shall not be disclosed in any report of the proceedings the name or address of the Claimants' children or any other children referred to in the evidence or any details leading to their identification. Such children, if referred to, shall only be referred to by letter of the alphabet.
11. Pursuant to CPR rule 5.4C a person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the court records only if the statement of case, judgment or order has been anonymised such that: (a) the Claimant's children and any other children are referred to in those documents only by letter of the alphabet; and (b) any references to the names of such children have been deleted from those documents.
12. Any person affected by this Order may apply on notice to all parties to have this Order set aside or varied.”
(emphasis added)
I will refer to this order as ‘the Anonymity Order’. Notwithstanding the order, the Appellant's names continued to appear on the title of the action and on the heading to the order itself.
The hearing before the Judge
The Appellants renewed their substantive application in respect of the unsuccessful grounds before the Judge on 9 October 2020. The hearing took place remotely. Apart from the parties, the Judge and the court staff, it was attended by Mr Sam Tobin of PA Media and by a law reporter. At the outset of the hearing, the Judge sensibly referred to the Anonymity Order:
“THE DEPUTY JUDGE: Thank you. Now, there is a preliminary matter I want to begin with and that is the question of anonymity. In the order of Mr Justice Linden on the papers he made an anonymity order and, as I read it, that order does not need to be renewed at this particular hearing. Is that the understanding of all parties?
[COUNSEL FOR THE RESPONDENTS]: That is our understanding, my Lord, that it is made for the purposes of the proceedings and continues until it is discharged.
THE DEPUTY JUDGE: Yes. Sometimes it is time limited until an oral permission hearing but this one does not appear to have been. Is there anybody who intends making an application to vary or discharge the anonymity order?
MR TOBIN: My Lord, sorry. It's Sam Tobin from the Press Association on the line.
THE DEPUTY JUDGE: Yes, Mr Tobin.
MR TOBIN: My Lord, I was not aware there was an anonymity order. As your Lordship may know, this hearing has been listed in public with the claimant's surname on the publicly available list and there has been prior reporting that I've been able to find online in relation to these proceedings. Not these proceedings, I apologise, but in — I believe in relation to the claimants although I'm not sure about that.
THE DEPUTY JUDGE: Well, the anonymity — the anonymity order applies to the children, which is both the claimant's children, who are referred to, and also children who are referred to in the evidence. That is the extent of the anonymity order.
[CHM]: I did request for an anonymity order for all of us because we do not want this in the press. This is not a matter for the press.
THE DEPUTY JUDGE: Well, the anonymity order only extends to the children. That is the order which has been granted.
[CHM]: And this whole case — Would you please anonymise our names also, Judge?
THE DEPUTY JUDGE: Well, Mr Tobin has pointed out that those names are already in the public domain by virtue of how the case has been listed and the anonymity does not extend beyond the children.
[CHM]: All these details are about my children and so if you release my details you, therefore, release my children's identities.
THE DEPUTY JUDGE: Well, the point that I am making though… is, to the extent that that is a problem, it is a problem which already exists.
[CHM]: I appreciate that and that is one of our points on confidentiality, that [the] Council have breached that confidentiality and that has further extended to the fact that there are now press involved.
THE DEPUTY JUDGE: Mr [name of counsel], anything you want to say about anonymity?
[CMH]: Could I also ask who the other callers are?
THE DEPUTY JUDGE: No, I would like to hear — I would like to hear from [counsel] first.
[COUNSEL FOR THE RESPONDENTS]: My Lord, I do not have any instructions on whether the anonymity order should be extended to the parents as well. I mean, it is correct to say that the original application made by the parents in their claim for judicial review did, as I read, seek to seek anonymity in relation to all of them, so I think, in the absence of instructions, I take a neutral stance. I would note that certainly the council very strongly denies that it has in any way breached confidentiality.
THE DEPUTY JUDGE: Mr Tobin, anything you want to say in relation to anonymity having heard that discussion?
MR TOBIN: My Lord, all I would say is that the CPR is very clear on this. CPR 39.2, the default position is hearings are in public and parties to litigation are named. This is a hearing in open court and unless there's a reason for a derogation from the principle of open justice I would say there's no need to extend the anonymity further.
THE DEPUTY JUDGE: Okay. [CHM], you have heard the submissions that have been made there. Is there anything further that you would like to add?
[CHM] I need to protect my children. We have been through the most horrendous defamatory (sic) by [the] Council, the headteachers and the school governors, and by allowing the press will absolutely annihilate my family even further.
… [discussion about the identity of those attending the hearing]
THE DEPUTY JUDGE: Thank you very much. Well, it seems to me as though extending the anonymity order that has already been granted would be futile on the basis that the information is already in the public domain. I therefore decline to extend the anonymity order but the anonymity order can continue so far as the children are concerned, and I do not understand Mr Tobin to dispute that particular fact. Is that right, Mr Tobin?
MR TOBIN: Not at all, my Lord. We, of course, wouldn't name the children even if we were able to, if there wasn't an order. Just to make that clear.
THE DEPUTY JUDGE: Thank you.
[CHM]: By identifying the children you — by identifying the parents
THE DEPUTY JUDGE: Mrs [name] —
[CHM]: — you identify—
THE DEPUTY JUDGE: — no, I am sorry, I have made my ruling on that. I do not want to hear further submissions or debate about that.”
The Judge then turned to the substance of the application. In his judgment at the end of the hearing (in which he refused the substantive renewal application), he referred to the issue in these terms:
“At the outset, Mrs [name] urged me to extend the anonymity order to include her and her husband. [Counsel]...
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The Queen (on the application of CHF and CHM) v The Headteacher and Governors of Newick CE Primary School
...that all parents' names should also be anonymised. The Court of Appeal extended the anonymity order to cover the Claimants' names: [2021] EWCA Civ 613 at §33. I extended it, at the start of the substantive hearing, to cover the parents of the other children. There has been no application t......